According to the law of England, a child born during lawful marriage
(wedlock) or within a competent time after the dissolution of such marriage
or after the death of the husband is presumed to be a legitimate child of the
husband, unless it is proved that the husband was impotent, or that the
husband and the wife had no sexual access to each other at a time when
conception could have taken place. Under section 112 of the Indian
Evidence Act (vide Appendix II) there is a presumption in favour of
legitimacy of a child born during the continuance of a valid marriage
between his mother and any man, or within two hundred and eighty days
after its dissolution, the mother remaining unmarried, and the presumption
can only be rebutted if it is shown by competent evidence that the parties
to the marriage had no access1 to each other at any time when the child
could have been begotten. In England the presumption of legitimacy ihay
be rebutted by proof of the impotence or sterility of the husband, but there
is nothing specific on this point in the Indian law.
An illegitimate or bastard child is one which is born out of wedlock or
not within a competent time after the cessation of the relationship of man
and wife or born within wedlock when procreation by the husband is not
possible. By the law of Scotland and by the Legitimacy Act of England
amended in 1926, an illegitimate child becomes legitimate by the subsequent
marriage of the parents, and inherits the property of its father.
The question of legitimacy may arise in the following cases : —
1. Inheritance.—A legitimate child born during lawful wedlock can
inherit the property of its father. According to the law of England a
monster, which has not the shape of mankind, is incapable of inheriting, but
there is nothing specific on this 'point in the Indian Law.
A monster generally does not live after it is born, but double monsters
of the varieties of the Siamese twins may live to adult age. They are united
mostly in the umbilical region or at the pelvis, and have some organs
common to both.
2. Tenancy by Courtesy of England.—If a" man marries a woman who
owns estates, and has by her a child born alive, he shall, for his lifetime,
become the tenant of the estates by the Courtesy of England after the death
of his wife, but the child should be born during lawful wedlock. Thus, the
husband cannot have any interest in the estates, if the child was delivered
alive by Caesarian section after the mother's death, though such a child is
regarded as a legitimate child. If she has had no child born alive, her
estates pass to her next heir-at-law at her death.
The law of tenancy by courtesy is not tejiable in India, for section 20 of
the Indian Succession Act (Act XXXIX of 1925) as amended upto 1932
enacts that no person shall, by marriage, acquire any interest in the property
of the person whom he or she marries or become incapable of doing any act
in respect of his or her own property which he or she could have done if
unmarried, but this section is not made applicable to a marriage contracted
before the first day of January 1866, nor shall it affect any marriage
between the parties, one or both of whom professed, at the time of such
marriage, the Hindu, Muhamadan, Buddhist, Sikh or Jain religion.
It may also be mentioned that by the Administration of Estates
1926, the old law as to inheritance and succession to property in
1. Access means no more than opportunity of sexual intercourse. It does
actual intercourse (mde Nagpur High Court Cr. Revision No. 502,. Mtf Ma&Mi
Sonafi KunU, 43 Cr. Law Jour., Sep. 1942, p. 717).